EXHIBIT 10.1
AGREEMENT REGARDING EMPLOYMENT
This AGREEMENT is made and entered into effective as of July 5, 2003,
between Cadiz Inc., a Delaware corporation ("Cadiz") and Xxxxx Xxxxxxxxx
("Brackpool"), and is made with reference to the following facts:
A. Brackpool and Cadiz have previously entered into that certain
employment agreement dated as of February 1, 1998 (the "1998 Employment
Agreement").
B. Subsequent to February 1, 2003, Cadiz failed to make payments of
base compensation to Brackpool as and when required under the 1998 Employment
Agreement, thereby resulting in a breach by the Company of the 1998 Employment
Agreement and giving Brackpool the right to terminate the 1998 Employment
Agreement. Cadiz and Brackpool acknowledge and agree that, as a consequence of
the foregoing, the 1998 Employment Agreement was effectively terminated as of
February 1, 2003.
C. Pursuant to Section 6(c)(ii) of the 1998 Employment Agreement,
Brackpool is entitled, following said termination, to receive payment of base
compensation and bonus for the entire remaining term of the 1998 Employment
Agreement (i.e. through January 31, 2004), which the parties agree is equal to
the sum of $800,000.
D. Notwithstanding the agreed termination of the 1998 Employment
Agreement as of February 1, 2003, and notwithstanding Brackpool's right to
collect termination payments without continuing to provide services to Cadiz
following that date, Cadiz has indicated to Brackpool that, because of his
experience and background, particularly at a critical juncture of Cadiz'
operations, Cadiz had and continues to have a need for Brackpool's services
subsequent to February 1, 2003 and the need for an amicable resolution of
Brackpool's claims against and liabilities to Cadiz. However, because of the
circumstances, it is necessary to change certain of Brackpool's duties and
responsibilities and to materially reduce his compensation, as set forth in this
Agreement, and to resolve mutual claims by and between Brackpool and Cadiz, as
set forth in the concurrently executed Agreement Regarding Satisfaction of Note
Obligations.
X. Xxxxxxxxx has agreed to the request of Cadiz to continue to provide
services to Cadiz and therefore the parties desire, with this Agreement, to
memorialize the terms and conditions upon which Brackpool is providing services
to Cadiz subsequent to February 1, 2003.
NOW, THEREFORE, the parties agree as follows:
1. TERMINATION OF 1998 EMPLOYMENT AGREEMENT Cadiz and Brackpool agree
that, effective as of February 1, 2003, the 1998 Employment Agreement is
terminated and that, as a consequence of such termination, Cadiz is obligated to
pay to Brackpool the sum of $800,000 (i.e. $500,000 in base compensation and
$300,000 in annual bonus) pursuant to Section 6(c)(ii) of the 1998 Employment
Agreement (the "Termination Payment").
2. SERVICE FOLLOWING DATE OF TERMINATION. From and after February 1, 2003
(the effective date of the termination of the 1998 Employment Agreement),
Brackpool agrees to provide services to Cadiz upon the following terms and
conditions:
2.1 TERM. The term of this Agreement shall commence as of February
1, 2003 and shall terminate as of September 30, 2003 (the "Term").
2.2 DUTIES. During the Term Brackpool shall serve as the Chief
Executive Officer of the Company, and Brackpool's responsibilities shall be
commensurate with such position. Brackpool shall report to, and take direction
from, the Company's Board of Directors.
Brackpool shall serve as a member of the Board of Directors of
Cadiz, and as an officer and/or director of any other subsidiary or affiliate of
Cadiz, without any additional salary or compensation.
Brackpool agrees that he will at all times faithfully,
industriously and to the best of his ability, experience and talents, perform to
the reasonable satisfaction of Cadiz all of the duties that may be assigned to
him hereunder and shall devote such time to the performance of these duties as
may be necessary therefor. Provided that Brackpool otherwise performs his duties
in a satisfactory manner, nothing herein shall require Brackpool to provide such
services on a full-time basis or shall preclude Brackpool from spending a
reasonable amount of time in the pursuit of other business opportunities, the
management of his personal investments or with any charitable or civic venture
with which Brackpool may be involved as long as such activities do not result in
any conflicts with respect to Brackpool's duties to Cadiz hereunder, or violate
any conflicts of interest policy which may be maintained from time to time by
Cadiz.
2.3 COMPENSATION. Brackpool's compensation hereunder shall be
$20,000 per month, subject to such deductions as Cadiz may from time to time be
required to make pursuant to law, governmental regulation or order. Brackpool
shall also be entitled to receive such fringe benefits (i.e., paid vacations,
sick pay and the like) as had previously been granted by Cadiz to Brackpool
under the 1998 Employment Agreement. Cadiz and Brackpool acknowledge and agree
that any compensation payable by Cadiz to Brackpool pursuant to this Section 2.3
is in addition to, and not in lieu of, the Termination Payment, that such
compensation is necessary in order to induce Brackpool to enter into this
Agreement and to provide the services described herein, and that Brackpool would
not enter into this Agreement, or continue to provide services following the
termination of the 1998 Employment Agreement, but for the payment of such
compensation in addition to, and not in lieu of, the Termination Payment.
2.4 TERMINATION.
2.4.1 This Agreement shall terminate:
i. Upon expiration of the Term; provided,
however, that prior thereto Brackpool and Cadiz shall evaluate and mutually
attempt to negotiate a new employment agreement setting forth the terms and
conditions of Brackpool's employment following expiration of the Term (it being
understood and agreement that there is no binding obligation on
the part of either Brackpool or Cadiz to enter into such an agreement or for
Brackpool to continue to provide services to Cadiz following expiration of the
Term in the absence of such an agreement);
ii. At the election of Cadiz, upon the death or
permanent disability of Brackpool, "permanent disability" being defined as any
continuous loss of one-half (1/2) or more of the time spent by Brackpool in the
usual daily performance of his duties as a result of physical or mental illness
for a continuous period in excess of ninety (90) days.
iii. At such time, if any, as Cadiz ceases to conduct
its business.
iv. At the election of Cadiz, upon the breach by
Brackpool of any material term or condition of this Agreement or upon the
dismissal of Brackpool by Cadiz for cause. For purposes of this Agreement, Cadiz
shall have "cause" to terminate Brackpool's employment if he (1) breaches any
term or condition of this Agreement, (2) engages in one or more acts
constituting a felony; (3) engages in one or more acts involving fraud or
serious moral turpitude; (4) misappropriates Cadiz assets or engages in gross
misconduct materially injurious to Cadiz or its affiliates or subsidiaries or
(5) willfully fails to comply with the instructions of Cadiz' Board of
Directors.
v. At the election of Brackpool, upon the
breach by Cadiz of any material term or condition of this Agreement.
2.4.2 RETURN OF COMPANY'S PROPERTY. If this Agreement is
terminated for any of the foregoing reasons, Cadiz may, at its option, require
Brackpool to vacate his offices prior to the effective date of a termination and
to cease all activities on Cadiz' behalf. Brackpool agrees that on the
termination of his employment in any manner, he will immediately deliver to the
Company all notebooks, brochures, documents, memoranda, reports, price lists,
files, invoices, purchase orders, books, correspondence, lists, or other written
or graphical records, and the like, relating to the business or work of Cadiz,
which are or have been in his possession or under his control and which have not
been returned to Cadiz. Brackpool hereby expressly acknowledges that all such
materials referenced above are the property of Cadiz.
3. MISCELLANEOUS.
3.1 Time is of the essence of this Agreement with respect to each
and every provision of this Agreement in which time is a factor.
3.2. No change in, modification of, or addition, amendment or
supplement of this Agreement shall be valid unless set forth in writing and
signed and dated by both parties subsequent to the execution of this Agreement.
3.3 Cadiz and Brackpool, without the necessity of any further
consideration, agree to execute and deliver such other documents and take such
other actions as may be necessary to consummate more effectively the purposes
and subject matter of this Agreement.
3.4 The existence, validity, construction and operational effect
of this Agreement and the rights and obligations of Cadiz and Brackpool
hereunder shall be determined in accordance with the laws of the State of
California; provided, however, that any provision of this Agreement which may be
prohibited by law or otherwise held invalid shall be ineffective only to the
extent of such prohibition or invalidity and shall not invalidate or otherwise
render ineffective any or all of the remaining provisions of this Agreement. Any
litigation concerning or to enforce the provisions of this Agreement shall be
brought in the courts of the State of California.
3.5 In the event of any controversy, claim, or dispute between the
Cadiz and Brackpool arising out of or relating to this Agreement, the prevailing
party shall be entitled to recover from the non-prevailing party reasonable
expenses, including, but not by way of limitation, attorneys' fees and
accountants' fees solely as determined by the court.
3.6 The section headings used in this Agreement are intended
solely for the convenience of reference, and shall not in any way or manner
amplify, limit, or modify, or otherwise be used in the interpretation of any of
the provisions of this Agreement and the masculine, feminine, or neuter gender
and the singular or plural number shall be deemed to include the others whenever
the context so indicates or requires.
3.7 The covenants, agreements, representations, or warranties,
terms and conditions contained in this Agreement shall be binding upon and inure
to the benefit of the successors and assigns of Cadiz and Brackpool; provided,
however, that Brackpool may not assign or transfer any of his rights or duties
hereunder except upon the written consent of Cadiz in its sole and absolute
discretion. In no event shall Brackpool assign or delegate responsibility for
actual performance or services or any other obligation hereunder.
3.8 This Agreement constitutes the entire agreement between the
parties as to the subject matter hereof. No provision of this Agreement shall be
waived, altered or canceled except in writing signed by the party against whom
such waiver, alteration or cancellation is asserted. Any such waiver shall be
limited to the particular instance and waiver of a provision in one instance
shall not prevent a party thereafter from enforcing each and every other
provision of this Agreement.
3.9 This Agreement may be signed in counterparts, and delivery of
facsimile signatures shall be deemed effective to create a valid and binding
agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement effective as of the day and year first above written.
Cadiz Inc. Xxxxx Xxxxxxxxx
By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxx Xxxxxxxxx
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Chairman
Compensation Committee
